September 29, 2005

Life Tenure Starting...

Almost immediately after the Senate voted to confirm John Glover Roberts as the 17th Chief Justice of the United States, AP and other news sources ran stories stating that Roberts had "became the 17th chief justice of the United States Thursday, overwhelmingly confirmed by the Senate to lead the Supreme Court through turbulent social issues for generations to come." Even a cursory reading of Marbury v. Madison will inform the gentle reader that a person does not assume a post until the President signs a commission. The President may very well have signed Roberts' commission as soon as the Senate voted, but I somehow doubt that. Nitpicking? Yes. Moot now that Chief Justice Roberts has taken his oath of office? Definitely. But I wouldn't be a genuine law geek if I didn't point this out.

Band Aids on an Epidemic

I finally finished a post that I started over a year ago and had forgotten until today, on the question of making arbitrary abuse by guards or fellow prisoners part of the punishment for having committed a crime or being under suspicion. The reminder came from Milbarge's post about whether we should take the probability of assault by other prisoners into account in determining the length of sentence and location of its being served.

Americans accept prison rape too casually, but we need a more global solution than simply reducing the sentences of the "pretty" ones, or those whose crimes make them more likely to be victimized. Prison guards have a limited ability to prevent assaults from occurring within the cell, but in that case we should be housing likely victims away from probable perpetrators, and guards should be held liable for failing to deal with assaults that occur in the general environment. In other words, no one should be getting raped within sight or hearing of an authority figure.

On the other hand, we can't make a good assessment ahead of time of who the probable perpetrators are, though I admit to basing that mostly on The Shawshank Redemption, where the rapists were a weaselly group of men who committed their assaults by force of numbers rather than individual strength.

Today / 09.29.05

September 28, 2005

Pity the Fat Mormon Kid

In a comment to this post, A. Rickey remarks, "Similarly, it springs to mind that you're worried about the veto of the angrier God, but not particularly concerned about the veto of the playground bully. If what you're really worried about playground harassment for kids who are different, is the problem really that we require kids to listen to 'under God,' or that we don't teach our children not to be playground bullies?" Implicit in such a question is another one: Why should we make a federal case out of religion, but not by other differences? After all, kids pick on each other all the time for a multitude of reasons, and there's no Constitutional right to bar schools from promoting being athletic or of a healthy weight, even though such an environment encourages harassment of the klutzy and genetically-obese.

However, there's good reason to find a school's promotion of religion to be particularly problematic, even if the fat Mormon kid actually gets teased more about his body than his spirit. I worry more about the pressures imposed by religious observance than those exacerbated by the dancing portion of the physical education class* because to some extent, we recognize a parental right to determine a child's upbringing, including religious inculcation. To put parents in a situation where they must send their children into a an environment of government-institutionalized hostility to the family's beliefs is a greater demand than the state should make. Though many people eventually alter their formal religious affiliation, a child should not be torn between the faith of his fathers and that of the local school board.

The obvious counter-argument is to claim that a government that does not permit the teaching of creationism or intelligent design is one of atheistic hostility to fundamentalist faith, but that assumes teachers will lay out evolutionary theory and say, "This proves that your parents are wrong." Should a child question a teacher about apparent incongruities between their religion and what is being taught, the teacher can say, "This is a scientific theory, it's not about religion." When further pressed, "If you find it is incompatible with your beliefs, you don't have to accept it personally, just learn the idea the same way the non-Protestants learn the plot of Paradise Lost without believing any of it."

A teacher will have much more difficulty explaining to a Mormon or Catholic child that an evangelical prayer that asks God to help the children see the light and become born again is in a different conceptual area than their own religion -- or that a daily pledge declaring this to be "one nation, under God" is not a denial of polytheistic or non-theistic beliefs. Evolution and Paradise Lost are taught so the children have the information; they can ignore its deeper meaning or go on to become biologists and apologists. Prayers and pledges are made in an attempt to affect the beliefs and attitudes of those who hear them, with an expectation of greater godliness. Paradoxically, only when no religious person bemoans the loss of a religious invocation as an indication of our godless society, can one say that the invocation is indeed merely traditional, ceremonial, solemnizing, rather than an intentional standing in the corners of streets to ratify a unified religiosity.

* I don't recall anyone's refusing to dance during my middle school PE courses, and I grew up among many Southern Baptists, so I'm pretty sure that the "no dancing" restriction is far outdated.

MR. GRIFFIN: Mr. Chief Justice, may it please the Court: In July of 1996 there was a hearing held in the district court in Galveston, Texas. In that hearing, the court, the district court, took testimony and part of the testimony came from the Dogs, as they're affectionately known, in this case.

JUSTICE SCALIA: Could I ask you about that? That's just a curiosity I have in this case. I don't even know who the plaintiffs are. Is there -- how come it's Jane Doe? I mean, are these minors? Is -- or what?

MR. GRIFFIN: One parent is -- one parent, one group of plaintiffs were Catholic, a Catholic family. Another group of families were a Mormon family.

JUSTICE SCALIA: Do people have rights to sue anonymously in Federal court? Is anybody who just doesn't want it known that he's bring a lawsuit, he's ashamed of it for one reason or another, can sue anonymously? I didn't know we could do that.

MR. GRIFFIN: I think the jurisprudence is, if there is a threat of intimidation, if there's a threat of violence, if there's a threat -- and I think there was testimony that -- within the temporary injunction when the case first started that there was this threat, and the district court had entered an order instructing not to ferret out the names, and when there was an attempt to ferret out the names --

CHIEF JUSTICE REHNQUIST: Well, how does the district court have authority to do that?

MR. GRIFFIN: Well, he had an attempt -- he had the authority to protect the plaintiffs, in other words, from any threat. The names of the plaintiffs were known to the defendant.

CHIEF JUSTICE REHNQUIST: What was the threat?

MR. GRIFFIN: The threat was, we had information that certain children were intimidated, certain children were pushed, certain plaintiffs, certain people who were not plaintiffs had to pull their children out of the school because of protesting the prayer policies that existed in Santa Fe, and that there was a intimate threat that the district court saw it necessary to protect.

CHIEF JUSTICE REHNQUIST: Well, do you think the district court just has complete discretion to grant anonymity that way?

MR. GRIFFIN: I don't think the district court has the complete discretion, and I think that one of the issues that we briefed at the trial court below was that issue, and when we got to the -- into the hearing of July of 1996, the district court said, now that we're going into a hearing, these names must be revealed, but we will do it under protection. He did not seal that courtroom. He asked the press not to publish their names, but their names ultimately became --

CHIEF JUSTICE REHNQUIST: Their names ultimately were --

MR. GRIFFIN: Yes. Their names ultimately became known to the public and -- but they were not published in the newspaper, and in this hearing one of the most fundamental things that happened in the hearing after the district court had gone through the problem of the injunction, after the district court had instructed not to ferret out the names, after the court had heard testimony in terms of intimidation, the district court looked at the plaintiff, known as Susan Doe in the record, and he asked her, what is the big deal?
And she looked at the court and she said, I teach my children at home religion, and I don't want to go down, and I don't think it's necessary for me to go down to the school and interview every one of the teachers and find out their religious faith. That's the backdrop of this case. ...

The existence of such intimidation and harassment preceded the suit, as this article notes, and also followed its filing:

Because of the climate, the families decided that they needed protection, and filed their lawsuit anonymously. But the district actively sought to find out their identities, according to one report going as far as to interrogate some students in an effort to discover the identities of the families. These efforts led the district court to threaten "the harshest possible contempt sanctions" if school employees continued trying "to ferret out the identities of" the families. It specifically enjoined the district from using "bogus petitions, questionnaires, individual interrogation, or downright 'snooping'"to discover who the families are.

There are a variety of circumstances that seem to demand protecting the identity of plaintiffs: abortion, as in Roe v. Wade, as well as merely embarassing sexual situations, as in Moe v. Doe. The plaintiffs who gave Newdow standing all were anonymous, and his motion to keep their true names off the suit was unopposed by the U.S. Justice Department.

September 23, 2005

The One-Eyed Trust Is King

Reuters reports that the Securities and Exchange Commission appears to be investigating Senate Majority Leader Bill Frist's (R-TN) sell-off of his, his wife's and their children's shares in Hospital Corporation of America, which his father founded and of which his brother was the CEO and continues to be a board member. Frist had been criticized in the past for holding stock in the country's largest for-profit hospital chain while making policy on health care, and would reply that because all his holdings were in a blind trust there could be no conflict of interest. However, on on June 13 he requested the sale of all of his remaining HCA stock, and a month later HCA's shares fell almost 9% following a warning that second-quarter operating earnings were likely to fall short of analysts estimates.

Frist's spokesman Bob Stevenson said "Senator Frist had no information about the company or its performance that was not available to the public when he directed the trustees to sell the HCA stock. His only objective in selling the stock was to eliminate the appearance of a conflict of interest. The majority leader will provide the SEC any information that it needs with respect to this matter." The SEC routinely investigates stock sales made before negative news for signs of insider trading.

What the story made me wonder was the extent to which one can continue to control the shares in a "blind" trust. I had assumed that by putting one's holdings into such a trust, one no longer could make decisions regarding them, perhaps with an exception for trades made for non-financial reasons (such as buying stock in Israeli companies to show support in the face of calls for divestiture). Can anyone with more knowledge of trusts and estates clarify this?

Today / 09.24.05

September 21, 2005

Depends on the Definition of Sovereignty

I write this while sitting in Con Law discussing Morrison v. Olson, 487 U.S. 654 (1988) (upholding power of Independent Counsel to investigate the Executive branch). My memory may be hazy, but I seem to recall something about handing over sovereignty back to a certain country in a certain fertile crescent, which this seems to contradict. Either I have a warped definition of sovereignty (i.e., discretion to prosecute as a bare minimum starting point) or my memory of the event is just not accurate.

September 19, 2005

Blaspheming Atheism

Though Will Baude's conclusion that "Metaphysically and legally, atheists are and ought to be just like everybody else for establishment claims" hit upon one of my objections to A. Rickey's post on why atheists who don't like "under God" in the Pledge are whinier than Christian fundamentalists who don't like evolution in science class, Baude misinterprets Rickey's use of the phrase "injury in fact." The latter says, "But injury as 'violation of a right' is different from injury in the sense I'm considering, the actual negative consequence of the pledge being stated by a state actor in front of an atheist. Here I become less certain of the problem." His whole argument is based on the fact that because atheists have no gods to offend, they are only nicking their own "egos" when they are compelled to mumble "one nation, under God," whereas those who believe in some supernaturalism beyond themselves may fear punishment at its hands if they fail to obey its commands.

However, I think this thin conception of atheism underestimates the atheist's potential sense of violation to his soul -- yea, a soul without a deity -- when his daughter is pressured by the chorus of her classmates and disapproving gaze of her teacher into joining the theistic horde. As the post before this one notes, the consequences of being a minority can be quite real, not only for atheists but also for Mormons and Catholics. Having grown up Hindu in fervent Protestant country, I was often asked by other children in my public school why I didn't believe in Jesus (my standard reply was that I knew Jesus existed as a historical person, which tended to confuse them into silence), and was once driven to tears by a classmate's mockery of a religious symbol I wore. Exacerbating these unavoidable discomforts by making religiosity institutional by state command, and demanding that children in the minority have the courage of their convictions in the face of them, seems to me an excessive bow to democratic preference. Having to sit in a classroom while a teacher half-heartedly mentions a theory about how life developed on this planet may send the kid home to have her confusion untangled by creationist parents, but it's unlikely to result in the kind of playground harassment that being the only kid not saying "under God" entails.

Rickey's post seems to be more about politics and theology than legal standing; he doesn't explicitly argue for a second-class citizenship for atheists in Establishment Clause cases, only for a skeptical view of their motives. Still, I protest the idea of valuing people's preferences by how angry a god they have, as it would privilege fundamentalists over moderates, which doesn't seem like a wise move for a peaceful society. After all, even somewhat moderate Hindus are sincerely convinced that Lord Ram was born -- actually and physically born -- at Ayodhya, whereas Muslims only have the weight of the last half millenium in being distressed over having their 16th century mosque at the site torn down. Should the Hindus' greater belief in the specific holiness of the ground mean that a secular government (as India's is again in fact as well as theory after the last election) should hand the site over to Hindus? On the other hand, in my experience there's no Hindu fatwa or jihad and it has a fairly negligible hell, so should the existence of more stringent tendencies in Islam make it the more important religion?

Correcting a Possible Misperception

One view of the debate over the First Amendment's religion clauses is that the conflict is between the minority of atheists and the majority of believers; the believers press for the presence of (their) God in the public square, while atheists are determined to root all faith out of American life. However, church-state separation often features members of minority religions in opposition to the local majorities: I've mentioned the Hindus who protested against having the Ten Commandments displayed by the state, and Sean sympathized with the Wiccans who can't teach their children about their faith or give the opening prayers for legislative bodies.

The plaintiffs in Santa Fe Independent School Dist. v. Doe (no prayer over the loudspeaker at high school football games) were Mormon and Catholic families, who were anonymous because of fear of intimidation or harassment, an apparently well-founded worry.

In their complaint the Does alleged that the District had engaged in several proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies, and to deliver overtly Christian prayers over the public address system at home football games.

These invocations, benedictions and prayers seem to me unlikely candidates to offend Christians of any denomination, as they merely refer to a heavenly Father, Lord, Jesus and blessings, all of which to my knowledge are compatible with Catholicism and Mormonism -- as some Mormons agree. "A friend of the families, Debbie Mason, told the Associated Press, that the families were elated by the Supreme Court's decision on Monday. 'Thank God, thank God,' Mason said." Certainly Santa Fe, Texas gives me reason to be grateful that my parents settled elsewhere (though my dad claims the warning to African Americans not to let the sun set on them there once was prevalent in my hometown). The Ku Klux Klan had a significant presence in Santa Fe during the 1980s, and in 2000 a Jewish student suffered anti-Semitic harassment culminating in death threats.

September 17, 2005

Notes to Self

In the absence of an internet connection or casebook while we were discussing sundry legal and political matters, a friend and I couldn't agree on whether Nike v. Kasky had been an actual decision on the merits. My memory was the more precedentially accurate -- the Supreme Court did dodge making a determination of whether NIKE's claim that it no longer was Sweatshop Inc. was protected or unprotected (commercial) speech. However, the per curiam statement that "The writ of certiorari is dismissed as improvidently granted" doesn't show the level of disagreement within the Court. While Stevens, Ginsburg and Souter concurred in the dismissal of cert, Kennedy wrote simply "I dissent from the order dismissing the writ of certiorari as improvidently granted," and Breyer and O'Connor dissented from the order at much greater length and stated what their vote on the merits would have been: "I would apply a form of heightened scrutiny to the speech regulations in question, and I believe that those regulations cannot survive that scrutiny."

Ooh, you know what a dodged Supreme Court case means? Moot court material! Surely it's not as good as a circuit or even state court conflict on the meaning of a federal law, but now that lists of circuit conflicts are hard to find, we take what we can get. Though I'm pretty sure that jamming a commercial speech issue in with an issue relating to South Carolina's odd domestic violence law (my student editor partner's preference) will make for a fact situation absurd even beyond our previous fantasies regarding green-card marriages, basement dungeons and private investigators. On the other hand, this would be the ideal of mixed fact and law, so that we could balance it by pushing the speech in question more toward commercial or more toward protected depending on the caselaw in the jurisdiction we chose. Or we could try to find a state that actually protects commercial speech -- does anyone know of any such?

September 16, 2005

Query for Debate Folks

The Phoenix Lawyers Chapter of the Federalist Society is advertising its next event, a $25-a-head dinner and debate between State Senator Dean Martin, the sponsor of recent voucher legislation and John Wright III, President of the Arizona Education Association. It is described as "Resolved: Should Arizona Include School Vouchers In Its Mix of Educational Options?"

Never having been a debater, I cannot state this with certainty, but it was my impression that when someone said "Resolved," that is not meant to be followed by a question, as a question is indicative of irresolution.

(Incidentally, the obsolete meanings for debate are all things like "To fight or quarrel; to fight or argue for or over; conflict; strife." Middle English debaten, from Old French debatre: de-, de- + battre, to beat; see batter.)

September 15, 2005

Today / 09.16.05

Today in History (1992) - Black Wednesday: the Pound Sterling is forced out of the European Exchange Rate Mechanism and forced to devalue against the Deutschmark by an international group of currency speculators led by George Soros, who exploited the fixed exchange rate by speculating on the interest rate differences between Britain and Germany (earning several billion dollars in the process). Black Wednesday saw interest rates jump from 10 percent, to 12 percent, and then finally to 15 percent in a futile attempt to stop the pound from falling below the ERM limits. The exchange rate fell to DM 2.20, costing the country tens of billions of pounds. Thirteen years later, the Deutschmark has gone out of existence after becoming the base for the Euro, which is now worth about two-thirds of a pound.

Earth to Justice Breyer

Today, Judge Karlton of E.D. Cal ruled that he's bound by 9th Cir. precedent and must find the compulsive recitation of the pledge in public schools in violation of the establishment clause. Needless to say, those more versed in First Amendment jurisprudence will comment on the merits. I want to point out an instance of judicial frustration with one's supremes. In the last footnote to the opinion, Judge Karlton writes:

This court would be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Court’s recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nation’s asserted religious heritage, and thus are permitted. As last terms cases, McCreary County v. ACLU, 125 S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125 S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is utterly standardless, and ultimate resolution depends of the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance. Moreover, because the doctrine is inherently a boundaryless slippery slope, any conclusion might pass muster. It might be remembered that it was only a little more than one hundred ago that the Supreme Court of this nation declared without hesitation, after reviewing the history of religion in this country, that “this is a Christian nation.” Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting “under Christ” for “under God” in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the Pledge does, but also Jews, Muslims, Buddhists, Confucians,Sikhs, Hindus, and other religious adherents who, not only are citizens of this nation, but in fact reside in this judicial district.

September 12, 2005

U.S. v. Scott

[UPDATE BY PG: For those viewing this entry after seeing its citation in United States v. Scott, 2006 U.S. App. LEXIS 14182 (9th Cir. Nev. June 9, 2006), please be aware that the dissent erroneously identified the author as a member of the defense bar; Sean Sirrine was a first year law student at the time he wrote the following.]

I wrote today on my other blawg, Objective Justice, that I would discuss the recently released opinion in U.S. v. Scott over there. Since then, I have changed my mind and decided that this forum would be a great place to continue my history of posting Judge Kozinski opinions. (Well that, and I made an ass of myself by posting that the opinion came out today rather than last Friday.)

As a summary, this is what I got out of the case:

Judge Alex Kozinski, (my favorite appellate judge), has issued an opinion today on pretrial waiver of 4th Amendment Rights. Kozinski claims that this is the first opinion from the Circuit Courts on this issue and that it is unconstitutional to make someone waive their rights in order to stay out of jail. Judge Jay S. Bybee dissented.

Seem like an intriguing case? Follow the "continue reading" link to get all the juicy details.

I'm not going to do my usual interpretation type thing, (where I drag on forever), but rather give you a brief taste of some of the issues I found especially intriguing.

The question presented in this case was one of first impression and revolved around whether someone may relinquish their 4th Amendment Rights in order to remain out of jail. (I know that sounds like I'm taking sides already, but really I'm not. Even the dissenting opinion was couched in a belief that someone who is awaiting trial may give away his full 4th Amendment Rights.)

There is no contention that Mr. Scott was searched with less than probable cause, the contention was however, that since Mr. Scott had waived these rights in order to remain out of jail this burden of proof was not necessary.

The courts have come to some conclusions that seem to make it clear that if a person is on probation, there is less expectation of privacy and that someone awaiting trial that has signed away these rights also cannot expect the "normal" level of privacy afforded most citizens.

Judge Kozinski, in his opinion, refutes this assertion and claims that the state needs to show what the "special need" of the state is to remove these rights. In his view, the state never gave any indication as to why it was necessary to request these rights in this given case. (He explains that there may be just cause for cases that have a different fact pattern.)

All in all, Judge Kozinski was protecting the ideal espoused in our legal system that a citizen is innocent until proven guilty, and that until they are found guilty they have all the 4th Amendment Rights any other citizen has if the state decides to release them into the public.

As I agree with Judge Kozinski's legal analysis, I think it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial. No prosecutor is going to allow someone to walk the streets without any restraint while they are being charged with felonies. So this opinion will most likely cause more people to be kept behind bars.

This might be good, but remember this is supposed to protect the ideal of “innocent until proven guilty”. If more of these people have to spend their time behind bars, are we really protecting this ideal?

Judging Umpire Judges

At the VC, Prof. Lindgren has the following commentary on Roberts' comparison of judges to baseball umpires. Specifically he has an amusing anecdote of three different types of umpires. But he ends the post with the following:

Further, I have heard that in Major League Baseball, umpires are rated on how well they call balls and strikes and demoted (or at least influenced in their future calls) if they call balls and strikes poorly. I question whether the press provides a similarly effective role judging the performance of justices.

While Prof. Lindgren can question the effectiveness of the press (does this include bloggers?) to judge the judges, I don't see the relevance of this analogy. Umpires, though constantly under scrutiny by SportsCenter instant replay are NEVER officially evaluated by the media. If there is ANY evaluation of an ump's performance, it's through an internal mechanism within MLB. See, e.g., rules governing a game played under protest. Cue U.S. Court of Appeals and SCOTUS.

Although strong arguments can be made that the judges and justices on those courts are not checked by any internal mechanism, I think the threat of reversal by the SCOTUS over Court of Appeals judges is at least nominally as great a threat as MLB imposes on any Ump. The only problem is with the justices on Mt. Olympus. Ultimately, I don't know if this is what Prof. Lindgren meant, but the accountability is to the electorate (where the press assists the electorate perhaps?). As Justice Roberts' switch following the sweeping victory of FDR illustrates, there is ultimate accountability even on the part of SCOTUS justices. Anything more would require some serious amendments regarding life tenure and guaranteed salaries (though I suspect the latter is not much of a threat).

Sweet $16,000,000

I know this isn't law related or even substantive by any stretch of the imagination, but I'm reaching a boiling point with MTV's latest reality show, "My Super Sweet Sixteen." The premise is really simple: VERY rich girls spoiled beyond anyone's wildest imagination feed their own egos with their parents' money by throwing a party to get attention at school.

My parents have never raised their hands against me or my brother and I find any physical punishment of a child abhorrent, but I'm starting to reconsider after this show.

September 11, 2005

Insurance, Litigation and Government Funds

Unsurprisingly, civil rights groups and others are suggesting that the federal government set up a fund to compensate the victims of Hurricane Katrina for their losses, much as 9/11 victims' families were compensated. But as often happens in discussions of the 9/11 fund, the government's reason for setting it up is ignored. The motive was somewhat altruistic, but not so much as a gesture of charity to the 9/11families as one to the airline industry, Port Authority and others who would have been hard hit by litigation. Every participant in the 9/11 fund had to agree not to sue those other bodies.

In contrast, the people affected by Hurricane Katrina don't seem to have a likely target for a tort. Perhaps they could sue the entity responsible for maintaining the levees, but to my knowledge, that would be the government itself. My understanding is that suing the federal government for large-scale policy actions like cutting the budget for levees is extremely difficult, if not impossible, especially in the absence of a Federal Tort Claims Act individual to blame -- this was an instance of the government acting as governments do, not of a person acting tortiously as a government agent. However, the Katrina victims would have slightly better standing to claim real injury than taxpayer/ constituent type plaintiffs. Taxpayer standing suffices for suits against the states, but they in turn have sovereign immunity, and the affected Gulf Coast states hardly could afford to waive it right now.

September 07, 2005

Sleeping Jurors Ok?

I was sent this story today by some listserver, (I can't keep up with all the stuff I get anymore), and I couldn't help but doing a double-take. Sleeping jurors aren't a reason to appeal? I thought for sure that I must have misread that, so I read it again and this time I was sure I got it right:

The Appellate Division rejected the argument that the defendant was entitled to jurors who have heard all the evidence.

Um, excuse me? A defendant is not entitled to jurors who have heard all of the evidence? I mean, I know some evidence can be kept out of the courtroom, but what about the evidence that is allowed? Shouldn't Due Process include not only jurors, but jurors that are awake? I mean, if they don't have to be conscious, are they actually performing any function at all?

The Appellate Division also had this to say:

Feinberg took "proper remedial measures" by opening the windows after surveying the jury. Further, since defense counsel did not request anything more at the time, the issue could not be raised on appeal.

Ok, so this looks like might have been procedural error on the part of the lawyer, maybe he should have asked for a mistrial at this point. The statistics that followed, however, made me side with the argument of defense's counsel that "a sleeping juror is per se a structural error not amenable to harmless error review":

Sleeping jurors are not uncommon. A 1996 survey of state and federal judges by Vanderbilt Law Professor Nancy King found that 69 percent of the 562 respondents had seen at least one in an estimated 2,300 cases during the preceding three years.

Now we know why they don't want to remove it from harmless error review, it is too common! Maybe we need to hire someone to monitor the jurors (maybe we need to poke them with a stick during trial if necessary). If they are sleeping, I don't think they should be making decisions that can affect another human for the rest of their life. I've just spent days on end in discussion of how one of the policy goals of the court system is to reach a "just" result. Is this just?

All you lawyers out there that disagree with me think about this hypothetical. Imagine that you are presenting oral argument to a judge in a case without a jury. You realize that the judge has fallen asleep during your opponents direct examination of a witness that you believe is lying on the stand. You say, "Hey judge, I think you should be awake to listen to this", and the judge decided he doesn't need to. He opens a window and allows the case to continue without ever revisiting that testimony.

Are you ok with that? I'm not, and I'm sure anyone who has ever been convicted, (or lost a case), due to sleeping jurors isn't. Not only do I think there should be a right of appeal if a juror sleeps through evidence, but I think that the juror should be found in contempt of court.

Strict Reconstruction

As a kind of footnote to my post about the division of responsibility in preventing and dealing with disasters like Hurricane Katrina and the aftermath, including the lack of safety and civic order in New Orleans:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Democratic Legitimacy -- Not!

In the many, many, many debates I've witnessed -- whether as audience member or participant -- about same-sex marriage, nearly every person who has opposed the judicial imposition of equal rights has said that if the legislature defined marriage to include same-sex couples, she would find that acceptable. However, judging by reaction to the California legislature's approving a same-sex marriage bill, apparently I've managed to pick the easiest-to-convince bit of the anti-Goodridge populace:

But opponents repeatedly cited the public's vote five years ago to approve Proposition 22, an initiative put on the ballot by gay marriage opponents to keep California from recognizing same-sex marriages performed in other states or countries.

''History will record that you betrayed your constituents and their moral and ethical values,'' said Republican Assemblyman Jay La Suer.

If it's not those liberal elitist judges, it's those liberal elitist legislators.

September 05, 2005

Federal, State and Local Responsibilities

One potentially worthwhile discussion, currently a little obscured by the politicized Katrina blame game, is which aspects of emergency response are the province of which level of government. With a certain degree of consistency, Bush's defenders insist that local government ought to have known best how to deal with a local problem, while the president's detractors see the coordination of a massive disaster relief effort that spanned over more than one state to be the duty of the feds. The preparation and deployment of the National Guard, mobilization of transportation out of the city, upkeep of levees and regulation of building in unsafe areas, etc. all should be undertaken by government, but I don't pretend to have any knowledge about which action should be taken by whom.

Today / 09.05.05

Today in History (1939) - Four days after Germany invaded Poland, the United States proclaimed its neutrality in Proc. No. 2348, 4 F.R. 3809, 54 Stat. 2629, in war between Germany and France, Poland, United Kingdom, India, Australia, New Zealand.

Don't Fire the Disabled Lesbian Blogger of Color

But taking Blachman's proposal (that employers ought to be legally required to show harm before firing somebody "because of" their blog) on its face, the public policy seems rather odd. The first thing the law does is make it more costly to fire bloggers than non-bloggers. This means that all else equal, employers would prefer to hire the non-blogger, because of the increased flexibility, and the insulation from later liability if they fire her. This means that employers are likely to discriminate against bloggers during the initial hiring; if a federal judge or magazine company or whatever else gets hundreds of candidates for a position, the bloggers among them will have a slightly higher hurdle to clear.

This will disproportionately hurt responsible bloggers, who wouldn't have said anything that the company objected to anyway, but who can't credibly commit to that ahead of time. In practice this means that in lots of companies that already sort of fear blogs because they don't really understand them, a quick google and bloghunt will just be a part of the hiring process.

This makes sense logically, except that I can't figure out why blogger status couldn't be made a protected status in the same way race and gender (along with other characteristics, depending on the employer and locality) are. That is, I understand why it would be absurd as a practical matter, but not as a technical one. If we're worried that hiring bloggers will become more costly than hiring non-bloggers, and that as a result employers will be less likely to hire the former, why not just make it illegal to discriminate at the hiring stage as well? If blogging is such a socially useful activity, protecting bloggers only at the point of termination seems foolish. The law can be written to permit firing bloggers who do something inappropriate with their blogging, just as sex discrimination law permits firing men who hold urination contests in the CEO's office, while protecting inoffensive bloggers.

Chief Justice Rehnquist Has Died

WASHINGTON (AP) -- Chief Justice William H. Rehnquist died Saturday evening at his home in suburban Virginia, said Supreme Court spokeswoman Kathy Arberg.

A statement from the spokeswoman said he was surrounded by his three children when he died in Arlington.

"The Chief Justice battled thyroid cancer since being diagnosed last October and continued to perform his dues on the court until a precipitous decline in his health the last couple of days," she said.

Rehnquist was appointed to the Supreme Court as an associate justice in 1971 by President Nixon and took his seat on Jan. 7, 1982. He was elevated to chief justice by President Reagan in 1986.

His death ends a remarkable 33-year Supreme Court career during which Rehnquist oversaw the court's conservative shift, presided over an impeachment trial and helped decide a presidential election.

The death President Bush his second court opening within pour months and sets up what's expected to be an even more bruising Senate confirmation battle than that of John Roberts.

Rehnquist, 80 and ill with cancer, presided over President Clinton's impeachment trial in 1999, helped settle the 2000 presidential election in Bush's favor, and fashioned decisions over the years that diluted the powers of the federal government while strengthening those of the states.

September 01, 2005

Law Schools Assisting Tulane and Loyola 3Ls

Echoing PG's desire to pass along information, I want to use this post to list law schools that are currently offering to take in Tulane and Loyola 3Ls along with the relevant contact information. If your school has announced their willingness to take in students, please link it in the comments and I will add it to the main post.

Also, I cannot urge students, professors, etc. enough to help get the 3Ls TO the law schools and beyond.

I came, I saw, I upgraded

Greetings. As is my habit among the law student blogosphere, I've dropped in to make a few quick changes in De Novo's MoveableType setup. The site should now be running MT 3.2, and since it's much less full of random system hacks than the creaky little site I normally run, it should be pretty stable. On the plus side, a lot of the comment spam here should now disappear.

In the meantime, if something seems to be wrong, leave a comment here and I'll address it this weekend.

Help for Tulane Students

Presumably Tulane Law students have heard about this already, but just to spread the word -- Columbia Law's dean sent the following earlier this afternoon:

We are deeply saddened by the tragedy that has hit New Orleans and Tulane University and hope that this great city is restored as soon as possible. We are able to offer some help to Tulane Law students by accepting five or six 3Ls for the Autumn term. We will waive tuition for these students, and some limited housing is available. Interested students should contact our Admissions Office at 212-854-2674 as soon as possible.

Among other interesting items about how Hurricane Katrina is affecting law in Louisiana, Jurist reports,

In other law-related news, the two law schools in New Orleans have been severely disrupted and are struggling to maintain contact between students and faculty at what was to have been the start of their fall terms. Tulane Law School has set up a temporary emergency website under the auspices of Atlanta's Emory Law School to share information over the upcoming weeks. Read an official announcement from Dean Larry Ponoroff. Ponoroff has already authorized other US law school deans to accept any Tulane 3Ls who contact them as transient students for the semester. A post-hurricane blog has been established for the Loyola-New Orleans Law School community.